Court showdown on Prop. 8

By Josh RichmanContra Costa Times

Posted:
03/01/2009 12:00:00 AM PST

Updated:
03/01/2009 08:55:39 AM PST

Click photo to enlarge

Joey Barham, 27, top left, and Ariel Owens, 30, kiss after being married at San Francisco City Hall on June 17, 2008. Same-sex couples are worried about what the upcoming state Supreme Court decision will mean for their marriages. (BRIAN BAER/McCLATCHY NEWSPAPERS)

Jack Becker and Lyle Swallow share a hilltop home in Concord's eastern reaches, affording an expansive view of Mount Diablo and the entire Concord area, filled with their collection of Native American art and photos from their cruise vacations.

So it almost seems odd that this well-to-do household — Swallow, 57, an attorney a few years shy of retirement; Becker, 74, a retired accountant and programmer — would count among its most prized possessions, tucked into the album of photos from their Aug. 8 wedding, a simple medical billing statement.

It's priceless to them because it lists one as the other's legal spouse in one spot, as husband in another. It was among the first official, legal recognitions of their marriage. And they fear that it, and the marriage certificate tucked elsewhere among the album's photos, could soon be worth no more than the paper on which they're printed.

"We've been together 25 years. We didn't need a piece of paper to validate our relationship," Swallow said, finishing Becker's thought that "it's not between us, it's the relationship of us as a couple to the outside, to society."

Becker's daughters and grandkids, as well as many of their friends at Clayton Valley Presbyterian Church, are "mad as hell" at the prospect of their dads' legal recognition — and that of about 18,000 other same-sex couples married last year — being withdrawn.

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Standing opposite them in three hours of arguments before the California Supreme Court on Thursday will be lawyers representing more than 7 million Californians — 52.3 percent of voters Nov. 4, representing the will of the people — who approved Proposition 8, which added a section to the California Constitution providing, "Only marriage between a man and a woman is valid or recognized in California."

About six months before the vote, the California Supreme Court had ruled 4-3 to overturn the state's statutory bans on same-sex marriage, finding those laws raised "constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause."

Changing the constitution to specifically ban same-sex marriage, many assumed, would render that ruling moot. The day after the election, three lawsuits challenging Prop. 8 were filed in the California Supreme Court.

So it's not just about same-sex couples, or about marriage, anymore. It's about how and when we change our constitution, and what happens to those left behind.

The court will consider Prop. 8 opponents' assertion that the measure was not a constitutional amendment — a narrowly tailored change that can be placed on the ballot solely with petition signatures — but rather a revision, a substantial change to the constitution as a whole that can be put on the ballot only by two-thirds votes of both Legislative chambers or by delegates to a state constitutional convention.

Equal protection under the law and fundamental civil rights are basic structural principles of the constitution, they say, and can't be changed with petition signatures and a simple majority vote.

Attorney General Jerry Brown — whom many had believed would see his office's duty to defend the state's constitution and laws as a mandate to defend the voter-approved Prop. 8 — has thrown a curveball, arguing the measure is inherently improper because it seeks to withdraw "inalienable" constitutional rights of liberty and privacy, including marriage; no popular vote can be permitted to do that without "compelling justification," he says.

The court also will decide whether Prop. 8 violates the California Constitution's separation of powers doctrine, essentially using the electoral process to make an end run around the judicial branch's protection of a minority's fundamental right.

And it will decide, if Prop. 8 stands, what should happen to the couples who married between the court's ruling in May and the election in November, like Swallow and Becker.

The court will issue a decision within 90 days after Thursday's arguments.

Some say letting Prop. 8 stand puts every Californian at risk in coming years.

"What we have codified here, we have said it's OK to be prejudiced in this particular way," said the Rev. Kim Smith, pastor of Trinity United Methodist Church, across bustling Bancroft Way from the UC Berkeley campus. "The slippery slope is, what's the next prejudice?"

That's the question posed by an amicus brief filed by the California Council of Churches, the United Church of Christ, two California Episcopal Bishops, the Progressive Jewish Alliance, and state and national Unitarian Universalist organizations. This brief, like those filed by other religious and civil-rights groups, urges the court to invalidate Prop. 8 lest the rights of those adhering to unpopular religious beliefs, or any other fundamental civil rights, be next up for abridgment by a simple-majority vote.

Smith's is a "reconciling congregation," meaning it welcomes members of all sexual orientations and gender identifications. The majority can't rule unbound in this and other houses of faith either, she said.

"If Jesus had waited for a majority, he wouldn't have been who he was," she said. "Jesus worked against and lived against and fought against almost every social prejudice of his day, and many inequalities in the law. "... Jesus wanted to break down those barriers."

But the California Catholic Conference, the Seventh-day Adventist Church State Council, the U.S. Conference of Catholic Bishops and the Union of Orthodox Jewish Congregations of America disagree, arguing in their brief — as do other socially conservative groups, in their own briefs — that letting the people debate and decide marriage's legal definition provides the balance of interests appropriate to a diverse society. To do otherwise, they say, sets up California for decades of discord.

"(W)ill the Court avoid needless church-state conflict by allowing the People to accommodate the rights of conscience through the political process, or will the Court set in motion a tidal wave of litigation pitting religious institutions systemically against government for generations?" their brief asks.

Prop. 8 supporters say they fought hard and won the election fairly, and now they fear the court will disenfranchise them. They contend in their legal briefs that the measure was a valid amendment, not a revision: It addressed a single, straightforward question that was easily understood by voters and effected no transfer of government power or restructuring of government. They say the court should continue its tradition of deferring to the people's initiative power, and that no constitutional right has ever been found to be beyond the people's power to amend.

Prop. 8 does not violate the separation of powers between government's branches, they say; it simply changes the constitution that the courts are empowered to interpret.

And finally, they say, the measure's plain language says same-sex marriages won't be "valid or recognized in California," regardless of when it was solemnized, so the 18,000 couples that wedded last year can't still be considered to be married.

Prop. 8 was unpopular in the Bay Area; it was opposed by 62 percent of Alameda County voters, 55.4 percent in Contra Costa County, 61.8 percent in San Mateo County, 55.8 percent in Santa Clara County and 75.2 percent in San Francisco. An array of Bay Area "Yes on 8" campaign donors and local clergy who had publicly supported the campaign either didn't answer requests for interviews, or declined to be interviewed.

One Prop. 8 supporter, speaking on condition of anonymity, answered an e-mail seeking referrals to any local supporters who would be willing to give an interview: "I appreciate what you are trying to accomplish here, but I don't know who would want to do this. Personally, I've received enough revengeful attacks from No on 8 folks both before and after the election — I don't want to attract any more."

The "Yes on 8" campaign suggested contacting an East Bay clergywoman who initially agreed to an interview but later withdrew; the campaign said it contacted about a half-dozen other possible East Bay sources, to no avail.